Friday, June 03, 2005

Judge Robert Chatigny's Ethics

Judge Robert Chatigny was asked point blank by Assistant Attorney General Terrence O’Neill, “Does your honor hold any personally held beliefs or has your honor written in any other cases that we just haven’t been able to find yet that would cause us to question your partiality with respect to the implementation or execution of a death sentence?”

Only two days before he threw a monkey wrench into serial killer Michael Ross’ impending execution, Chatigny answered, “I have no moral beliefs or other types of beliefs that would stand in the way of implementing a death penalty in the circumstances where the law called for it to be done. So, yeah; you'll not find anything that suggests anything to the contrary. I feel fortunate to be in a situation to be able to address these issues without having to deal with a client, the public, the media, a boss or anything other than my own conscience."

Two days after the interrogatory between O’Neill and Chatigny, the judge convened a now notorious teleconference in the course of which he threaten Ross’ lawyer, T. R. Paulding, that he would go after his law license if later it were to be shown that Ross was incompetent to choose to forgo further legal appeals and accept his court ordered sentence.

Apparently, the judge’s conscience had failed to remind him of his previous involvement in the Ross case.

Acting on behalf of the Connecticut Criminal Defense Lawyers Association, Chatigny had submitted in 1992 a three page application with the State Supreme Court seeking permission to file a friend of the court brief in the Ross case. Permission was granted, but no record of a brief has been found.

The association he represented, Chatigny had written in the application, "is gravely concerned about the trial court's rulings on significant evidentiary issues in this case.” In his teleconference, Chatigny clung to the same view, despite the authoritative judgments of appellate courts – including a state Supreme Court and a U.S. Supreme Court -- that Ross was competent to decide whether or not he should forgo further appeals.

In the additional hearing occasioned by Chatigny's intervention, the presiding judge reached the same conclusion regarding Ross' competence as had preceding appellate courts ruling on similar presentations. The so-called new "additional evidence" that Chatigny thought should be included in a new hearing on Ross' competence -- including the effects of "Death Row Syndrome" -- did not play any part in the hearing.

Partiality in a view need not be rooted in moral or religious beliefs. A judge may exhibit partiality because he is unwilling to let the considered facts of a case interfere with his inflexible prejudgments.

Could the judge’s previous intervention in the Ross case have slipped his mind?

Not likely, according to House Minority Leader Robert Ward who, along with other Republicans, filed a complaint against Chatigny with the U.S. House Judiciary Committee.

“I can understand a lawyer not remembering the details of a case he was involved in ten or twelve years ago, but there aren’t many Michael Ross cases. His name is on the petition to the State Supreme Court. He clearly had an agenda in this case.”

And since Chatigny previously had participated in the Ross case as a litigant – indeed, he was the sole signatory to the application seeking permission from the State Supreme Court to enter the case as a friend of the court -- Ward said it was “a clear ethical violation for a judge not to disclose his prior involvement in this case.”

Chatigny has declined comment on any possible conflict of interest. Judges are immune from suits, however injurious their actions, except under two narrow conditions: Their action must be “non-judicial, i.e. not taken in the judge’s judicial capacity; or, if judicial, the action must be taken in complete absence of all jurisdiction.

The protections afforded by the law to judges are necessary because suit happy lawyers otherwise would be able dance around the appellate process by suing judges who have ruled against them – which, come to think of it, parallels Chatigny’s extraordinary intervention in the Ross case.

Should judges be permitted to sabotage the appellate process by threatening attorneys and compelling them, by means of threats, to persuade obdurate clients to agree to further obstructive and unnecessary litigation? If the answer to that question is “no,” a further question presents itself: Can sanctions be devised that will not adversely affect the sometimes over-hyped “independence” of judges? Is it possible to devise a sanction applicable to judge A that will not impair the independence of the rest of the judicial alphabet?

“I have strong reservations about Judge Chatigny’s actions during the conference he conducted in the Michael Ross case,” Attorney General Richard Blumenthal said. “The Judicial Council of the Second Circuit will determine whether these actions were proper and ethical. My office has no role in that process. We have filed no formal complaint against the judge. No provision of state or federal law allows my office to recover costs from a judge found to have acted improperly or unethically.”

If suits are out of the question, what about – a mind bent on resolution here desperately reaches for solutions – horsewhipping? Would the establishment of a “Committee to Horsewhip Judge Chatigny” do the trick without imperiling other unbridled judicial autocrats?

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